Thе facts in the case are substantially without dispute. The defendant is a fraternal life association, doing business in this State, and upon certain specified
The foregoing requirements of the association are all which the record before us contains, bearing upon the questions raised by the appeal. It appears that a local lodge of the association was organized at Shenandoah, in Page county, Iowa, on October 27, 1880, and the deceased George E. Trotter became a charter member. Eor somе time prior to the death of said Trotter, this lodge had been reduced to six members, four of whom, it is alleged had removed from said town, leaving but two to transact the business of the lodge. Of these two the deceased acted as president of the lodge, and W. P. Eerguson as its financial secretary. There was, and for some years had been, no recording secretary or treasurer or other officer of such lodge except the president and financial secretary above named. In this situation it had been the custom, if not the duty, of the financial secretary to collect the assessments as they were made from time to time upon the membership of the lodge, and remit them direct to the Grand Secretary. This remittance was required to be made not later than the 15th of the month following the maturity of an assessment. Mr. Eerguson, the financial secretary of the lodge for a period of ten years prior to the death of Trotter, is a practicing lawyer and frequently away from home on the 28th of the month, and very frequently the assessments upon the deceased and other members were not paid until after the date, when, according to the letter of the by-laws, they were in arrears. But in all cases they were paid in time to be forwarded to the Grand Lodge within the time allowed for such remittance. The fact that these payments were frequently made after the 28th of the month was shown upon the books kept by the financial secretary. In no instance of such delinquency was the-member treated as suspended, or as having forfeited his rights in the association, and no mark or entry of any suspension on account
The deceased was in the mercantile business in Shenandoah, and it was the habit of the finaneiál secretary to call at his store on or about the time he wished to make remittance to the Grand Secretary and receive payment of the assessment from the deceased, or from his partner or clerk. All assessments upon the deceased prior to June, 1904, were paid and remitted. On the morning of June 27, 1904, Mr. Ferguson left Shenandoah and went to St. Louis, Mo., where he remained until July 5, 1904. During his absenсe there was no one left in charge of his business who was authorized to receive or receipt for the assessments due from the lodge members. On the morning of July 6, 1904, Trotter, who had been in good health up to that time, died without having paid the assessment which became due on June 28th. On the following day the plaintiff, or the partner of the deceased, paid the amount of the June assessment to the financial secretary, who included the same in his report and remittance to the Grand Secretary. Formal proofs of the death of Trotter were furnished the Grand Lodgе on July 13, 1904, but were not approved because the financial secretary had failed to sign and swear to a so-called “ supplementary affidavit,” which had been called for, stating in effect that the June assessment had been paid on or prior to June 28, 1904. The Grand Secretary again called for said affidavit from the financial secretary, who declined to make it, and, on October 8, 1904, the amount of the assessment, which had been remitted on July 7, 1904, as aforesaid, was returned by the Grand Lodge to the financial secretary who tendered its return to plaintiff, but the same was refused.
As is well said by Mr. Justice Brown in'the Withers case, supra: “ The position of the secretary must be determined by his actual power and authority, and not by the name which the defendant chooses to give him. To invest him with the dqties of an agent and to deny his agency is a mere juggling with words. Defendant cannot play fast and loose with its own subordinates.” The question involved in that ease, as in this, turned largely upon the proposition whether the local secretary, in collecting assessments made by the Grand Lodge upon members of local lodges, was acting as the agent of the latter. This question the court answered in the affirmative, in a very vigorous opinion, which cites many of the cases, and takes note of the tendency of' the courts, generally, to discountenance forfeitures of insurance on merely technical grounds, and to hold such forfeiture waived where the insurer, or its agent, by a course of business or conduct, has given the insured reasonable ground to believe that strict observance of the time and manner of paying recurring installments, as required by the letter of the contract, will not be insisted upon. The authorities are substantially unanimous that in schemes of co-operative life insurance in which the authority to issue benefit certificates, prescribe terms of membership, and levy assessments is vested in a grand or supreme lodge, or council, or other central governing body which central body exercises jurisdiction over local lodges or societies through which the membership is recruited, and by the officers of which assessments are
That this agency is subject to the operation of the ordinary rules.applicable“to agencies of the same general character in the business of ordinary life insurance is also well settled. Association v. Tucker,
An officer of a subordinate lodge charged with the duty of collecting and forwarding assessments is an agent of the Supreme Lodge v. Supreme Lodge v. Davis,
In Wallace v. Mystic Circle,
In the case of Mayer v. Insurance Co.,
In the recent case of Alexander v. Grand Lodge,
Under circumstances very similar to those in the case at bar, and upon a contract practically identical with the one here sued upon, the Wisconsin court has held that, where the local officer collecting assessments has been in the habit of receiving them after they were due, thereby leading the insured to believe that no forfeiture would be claimed if payments were made within a few days after maturity, the right to insist upon such forfeiture is waived, and where, under such circumstances, a member failing to pay an assessment due July 1st, died on July 10th, and on the same day a member of his family paid such assessment (a return of which was promptly tendered), there was no forfeiture, and a recovery upon the certificate was upheld. Reisz v. Legion of Honor,
In Illinois, it' has been repeatedly held that in organizations of this class the local lodge and its officers are agents of the Grand Lodge, and the latter is bound by notice to, or knowledge of, the latter. Coverdale v. Royal Arcanum,
favored in law, and that the courts will be vigilant and quick to discover, and give effect to any act or circumstance from which it may fairly be argued that the insurer has waived the right to strict and literal performance of the insured, or upon which an estoppel against such defense may be founded. Appleton v. Ins. Co., 59 N. H. 541 (
These societies are, as a rule, organized in an informal
II. The conclusions arrived at in the preceding paragraph being decisive of the appeal, we shall not attempt any extended discussion of other issues presented. With reference, however, to the claim of waiver because of the absence from home of the financial secretary at the time when the assessment became delinquent, according to the rules of the association, we will say there is good authority for the proposition that under such circumstances the member is entitled to a reasonable time after thе return of such officer or agent, in which to make the payment. See Insurance Co. v. Lester, and note thereto in
A partial defense was pleaded by the appellee to the effect that, by an amendment to the laws of the association, a lien had been imposed upon the certificate, which would reduce the amount recoverable thereon to $1,415.50. This issue does not appear to have been considered by the trial court, nor has it been argued by counsel, and we do not attempt to pass upon it.
For the reasons stated, the judgment of the district court is reversed, and cause remanded for further proceedings in harmony with this -opinion.— Reversed.